Guidance, Not Law – The EEOC Under Fire For Background Report Litigations.
A lawsuit pitting the Equal Employment Opportunity Commission (EEOC) against a major car manufacturer is raising concerns about several hiring issues. Among them:
- Use of criminal background checks
- Disparate or Structural discrimination
- Policies against ex-offenders
The EEOC lawsuit claims that the screening conducted by BMW Manufacturing Co. is unfair to African Americans, in part because of how candidates were treated if a background check turned up any criminal conviction. A South Carolina judge recently upheld the merits of the lawsuit and refused to dismiss the case.
The complaint was originally filed in 2013 after the EEOC “raised concerns” about how background checks were performed on
69 African American employees of a sub-contractor used by BMW at one of its South Carolina plants. The EEOC took issue with BMW’s response to background checks that returned with red-flagged criminal convictions. In all, BMW revoked access to its facility, and thus terminated employment with, 88 workers after learning of their criminal pasts.
BMW’s employment policy excludes anyone who has been convicted of murder, assault and battery, rape, child abuse, domestic violence, weapons violations or the manufacture or distribution of drugs. The policy makes no distinction between felony or misdemeanor convictions.
Courthouse News reports that, of those denied access to the plant because they had a criminal record, 80 percent were black and 18 percent white. The EEOC characterized those numbers as “statistically significant.”
The federal agency has made major headlines in the screening, human resources and employment law industries as the ripple effect from its 2012 Guidance continues to expand. The idea behind the Guidance (which the EEOC created in conjunction with the Federal Trade Commission) was to simplify the standards and procedures that businesses must follow if they use background checks to vet candidates. The two agencies even created two documents that spell out exactly what’s ok and what’s not ok when it comes to understanding and abiding background screening regulations.
The problem that is arising from this Guidance is that the EEOC is taking a heavy-handed approach to enforcing its rules. The agency is even being accused, in court no less, of overstepping its boundaries with the amount of class action lawsuits that it has filed in recent years. The list of businesses who have come under attack contains big names, too:
Obviously, this is causing a lot of tension, fear, and confusion for businesses, especially those small enough to not employ a full-time human resources professional or have an employment attorney on retainer.
“First and foremost, it is important to remember that the EEOC’s Guidance is not law as the EEOC does not possess legislative authority. Further, the EEOC has repeatedly claimed that this Guidance does not represent a major shift in how the agency viewed employer’s use of criminal information. However, in practice, the EEOC has become more aggressive in pursuing investigations.”
The BMW case will be interesting to watch to see how much enforcement the EEOC actually has regarding its 2012 guidance, not law, on the use of background reports.
How Active Screening Can Help
We have compiled a compliance checklist for employers to use as a reference.
1 Have an updated copy of the FCRA to reference.
2 Know the definitions the FCRA uses.
3 Provide potential employees with a clear disclosure.
4 Identify self and purpose for screening.
5 Make sure you have written consent from applicant.
6 Do not use alternative methods for screening, i.e. Google or social media.
7 Follow procedures to ensure report accuracy.
8 Re-verify results.
9 Perform an individual assessment before making a hiring decision
Employers taking adverse action must:
1 Provide oral, written or electronic notice to applicant about the Credit Reporting Agency.
2 Must include: name, address and number of the CRA that furnished the report.
3 Must also include: A statement that CRA had no influence on adverse action.
4 Provide notice that applicant may obtain report and dispute accuracy of report.
You can always call one of our team members if you have any questions. Reach us at 1-800-319-5580.
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